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BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT
Reserved on Pronounced on 29.01.2021 15 .02.2021
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. (MD) NOS. 4111, 4170 & 5142 OF 2006 W.P. (MD) NOS. 16115 OF 2012, 11665 OF 2013 & 3069 & 3199 OF 2014 W.P. (MD) NOS. 13961, 14243, 20549 & 20550 OF 2016 AND W.M.P. (MD) NOS. 4320 & 4379 OF 2006 W.M.P. (MD) NOS. 10385, 10386, 10558, 10559, 14705 TO 14707 OF 2016 M.P. (MD) NOS. 1, 1, 1, 2, 2, 3 & 4 OF 2014, 2 OF 2006
W.P. No. 4111 of 2006
T.Arivarasu Pandian .. Petitioner
- Vs -
1. Government of Tamil Nadu rep. By its Secretary School Education Department Fort St. George, Chennai 600 009.
2. The Director of Public Libraries 737/1, Anna Salai Chennai 600 002.
3. The District Library Officer Theni, Theni District. .. Respondents
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Writ Petition filed under Article 226 of the Constitution of India praying
this Court to issue a writ of Declaration declaring the amendment made in Rule
42 (2) of the Tamil Nadu Public Libraries Rules, 1950, as per G.O. Ms. No.220,
School Education Department dated 16.12.2005 passed by the 1st respondent and
published in Tamil Nadu Government Gazette dated 1.2.06 as illegal and ultra
vires of the Constitution of India insofar as the petitioner is concerned.
For Petitioner : Mr. K.Appadurai in WP (MD) 4111, 4170 & 5142/06 Mr. P.Krishnasamy in WP (MD) 16115/12 Mr. M.Sathiamoorthy in WP (MD) Nos.11665, 13961, 14243, 20549, 20550/16 and 3069 & 3199/14
For Respondents : Mr. S.Srimathi, Spl. GP Mr. S.Visvalingam for R-4 in WP (MD) 5142/06
COMMON ORDER
Education contributes to the wellbeing of the individuals as well as the
overall development of the society. It is not only an instrument for enhancing
efficiency but is also an effective tool for widening and augmenting democratic
participation. Sustainable Development goals are a collection of goals formulated
and adopted by the United Nations at global level designed to be a blueprint to
achieve a better and more sustainable future for all.
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2. A library is a curated collection of sources of information selected by
experts and made accessible to a community for reference or borrowing in a
quite conducive environment for study and it provides physical or digital access
to varied materials in a physical location or virtual space and the library consists
of varied collection of materials, both in physical and digital media in different
and varied formats.
3. A library is organised for use of the public and maintained by a public
body, a corporation, an institution or a private individual. Libraries offer
collections and services mainly intended for the use of people, who choose not to
or cannot afford to purchase the extensive collection themselves of such
materials which no individual can reasonably be expected to have. In addition to
providing materials, libraries also provide the services of experts, viz., Librarians,
in finding and organising information and interpreting the informational needs.
The initial advent of libraries contained physical material, which concept has gone
through a sea-change in the technological explosion, where modern libraries are
increasingly redefined as places to get unrestricted access to information in
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varied formats within the four walls of the cozy comfort of the individual’s house
by providing access to electronic means of very large amounts of information and
are becoming more of community hubs where programs are delivered and
people engage in lifelong learning.
4. In the long journey of history, libraries appeared to be repository spaces
to preserve the essentials of human civilisations. Defined by the New Oxford
American Dictionary, the library is described as 'a building or room containing
collections of books, periodicals, and sometimes films and recorded music for
people to read, borrow, or refer to'. Since the ancient Roman Empire, libraries
have been used as places to store all kinds of information, including artistic,
historical, literary, military, musical, reference materials and so on. Having gone
through so many changes and innovations over.
5. The Imperial Library was formed in 1891 by combining a number of
Secretariat libraries in Calcutta. Of those, the most important and interesting was
the library of the Home Department, which contained many books formerly
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belonging to the library of East India Collage, Fort William and the library of the
East India Board in London.
6. Tamil Nadu is the first State to enact the Tamil Nadu Public Libraries Act,
1948, in independent India, which came into force with effect from 1st April, 1950
and the objectives of the Act, as is evident from the Preamble is as under :-
“An Act to provide for the establishment of public libraries in the province of (Madras) Tamil Nadu and the organization of comprehensive rural and urban Library Service therein.”
7. Since 1st April, 1950, The Connemara Public Library had become the
State Central Library, which was initially opened for the public in the year 1896
and ever since the enactment of the Public Libraries Act, 1948, being the first
State Library Legislation in India, there has been a tremendous growth and
development of public libraries.
8. Public library is a treasure house of knowledge connecting the local
learning setup with the global resources of information and knowledge. It plays
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a vital role in keeping the public informed of changes that take place around the
world. The focus is to promote reading habits and life-long learning and to
nurture the reading habits, facilitate research work and provide information to
the needy people in accordance with the “Tamil Nadu Public Libraries Act, 1948”.
As on date, 4,638 libraries have been set up to meet the ever growing
information exposure of the society, the details of which are as under :-
S. No. Name/Types of Libraries Nos. 1 Connemara Public Library (State Central 1 Library & One of the National Depository Libraries) 2 Anna Centenary Library – Special Unit 1 3 District Central Libraries 32 4 Branch Libraries 1926 5 Mobile Libraries 14 6 Village Libraries 1915 7 Part-Time Libraries 749 Total 4638
9. As is evident from the above tabulated statement, seven different types
of libraries that are functioning throughout the State of Tamil Nadu. The various
categories of staff working in the above libraries functioning across the State are
as under :-
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S. No. Name/Types of Libraries Categories of Staff 1 Connemara Public Library 1. Librarian 2. Deputy Librarian 3. Bibliography Assistant Grade - I 4. Reference Assistant 5. Classification Assistant. 2 Anna Centenary Library 1. Chief Librarian and Information Officer 2. Deputy Chief Librarian and Information Officer 3. Librarian and Information Officer 4. Asst. Librarian and Information Officer 5. Librarian and Information Asst., Gr.I 6. Librarian and Information Asst., Gr.II 3 District Central Libraries 1. District Library Officer 2. Inspector of Libraries 3. Stock Verification Office 4. Grade-I Librarian 5. Grade-II Librarian 6. Grade-III Librarian 7. Village Librarian 4 Branch Libraries 5 Mobile Libraries 6 Village Libraries 7 Part-Time Libraries
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10. A library is many things to many people. It is a place of potential, of
discovery. It is a land of dreams: of adventure and magic, of friendly dragons and
other planets. It is a land of hope: of finding a new job or a new home, of learning
a new skill or making a new friend. With the above in mind, libraries have been
constituted under the Tamil Nadu Public Libraries Act, 1948, (for short 'the Act')
wherein the structure under which the libraries constituted thereunder are to
function have been codified. Section 18 of the said Act provides the power to the
Government to make Rules for the effective functioning of the Libraries. For
better clarity, sub-sections (1) and (2) (a) of Section 18 are extracted hereunder :-
“18. Power to make rules. - (1) The Government may, by notification, make rules consistent with this Act to carry out the purpose thereof. (2) In Particular and without prejudice to the generality of the foregoing power, such rules may provide for- (a) all matters required or allowed to be prescribed under this Act; * * * * * * * *”
11. Pursuant to the above rule making power vested in the Government,
amendment was made to Rule 42 (2) of the Tamil Nadu Public Libraries Rules vide
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issuance of G.O. Ms. No.220, School Education Department, dated 16.12.05.
Further thereon, in exercise of powers conferred by proviso to Article 309 of the
Constitution of India, Adhoc Rules relating to Tamil Nadu Educational Subordinate
Service was framed by issuance of G.O. Ms. No.60, School Education Department
dated 27.4.06.
12. Challenging the amendment made vide G.O. Ms. No.220 dated
16.12.05 and the Adhoc Rules framed vide G.O. Ms. No.60 dated 27.4.06, W.P.
Nos. 5142 4170 and 4111 of 2006 have been filed. To put it precisely, the said
writ petitions have been filed contending that the Adhoc Rules framed and the
amendments made are not in consonance with the Act and, thereby, the said
Rules and Amendment are liable to be struck down as ultra vires the Constitution.
13. Added to the above writ petitions, W.P. No.20549 of 2016 has been
filed for a declaration declaring the various Government Orders, viz., G.O. Ms. No.
1735, School Education Department dated 11.12.1989, G.O. Ms. No.161, School
Education Department dated 7.3.1996, G.O. Ms. No.105, School Education
Department dated 19.4.1999 and the consequential amendment made in Rule 42
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(2) of the Tamil Nadu Public Libraries Rules made vide G.O. Ms. No.220, School
Education Department dated 16.12.05 and G.O. Ms. No.171, School Education
Department dated 13.09.06 to be in absolute violation and non-compliance of
Section 9 (c) of the Tamil Nadu Public Libraries Act, 1948 and Rule 42 (2) of the
Tamil Nadu Public Libraries Rules, 1950 and Section 7 of the Amendment Act,
2001, as illegal, encroachment of powers, unconstitutional and ultra vires the
Constitution and declare them as null and void.
14. Consequent to the filing of the above writ petitions, the following writ
petitions have been filed for the reliefs as under :-
(i) W.P. No.16115 of 2012 has been filed for quashment of the impugned
letter dated 12.10.12 as also G.O. Ms. No.60 dated 27.4.06 as unconstitutional,
illegal and against the provisions of the Tamil Nadu Public Libraries Act.
(ii) W.P. No.11665 of 2013 has been filed for a direction to the
respondents to consider the petitioner for promotion to the post of Grade I
Librarian in the vacancy existing at the District Central Library, Theni, in
accordance with the statutory Act and Rules on the basis of the petitioner's
representation dated 1.7.13 within a stipulated time.
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(iii) W.P. No.3069/14 has been filed for quashment of the impugned
orders passed by the 2nd and 1st respondent as violative of the statutory
provisions and for a further direction to the 3rd respondent to promote the
petitioner to the post of Assistant and Superintendent with retrospective effect
from 19.10.07 and 1.5.09 respectively at the 3rd respondent office with attached
benefits within a stipulated time.
(iv) W.P. No.3199/14 has been filed for quashment of the impugned order
passed by the 1st respondent and the consequential promotional transfer order
passed by the 2nd respondent on the basis of State Level Seniority under the One
Unit System as illegal and consequently direct the competent Local Library
Authority, viz., the 3rd respondent to promote the petitioner to the post of
Superintendent with retrospective effect from 18.12.01 at the 3rd respondent's
office with attached benefits within a stipulated time.
(v) W.P. No.13961/16 has been filed for quashment of the impugned
proceedings passed by the 3rd respondent and for a further direction to the 3rd
respondent to disburse the salary to the petitioner with effect from 14.1.16 along
with arrears.
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(vi) W.P. No.14243/16 has been filed for quashment of the impugned
order relating to relieving proceedings passed by the 3rd respondent with
reference to the transfer proceedings issued by the 1st respondent and the
simultaneous transfer proceedings issued by the 2nd respondent in replacing the
petitioner with the 4th respondent as violative of the statutory provisions of the
Tamil Nadu Public Libraries Act and in violation of Article 311 of the Constitution
and for a further direction to respondents 1 to 3 to reinstate the petitioner in his
original place in the 3rd respondent office and for a further direction to the 3rd
respondent to conduct fresh enquiry by offering a reasonable opportunity to the
petitioner.
(vii) W.P. No.20550 of 2016 has been filed for quashment of the impugned
draft seniority list dated 5.7.16 and final seniority list dated 26.7.16 and the
consequential temporary promotional transfer order dated 10.8.16 issued by the
3rd respondent as illegal and in violation of the Principal Act and the rules and
consequently direct the respondents 1, 3 and 5 to promote the petitioner to the
post of Assistant and Superintendent on 19.10.07 and 1.5.09 respectively in the
5th respondent office with retrospective effect with attendant monetary benefits.
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15. In the above backdrop of the filing of W.P. Nos. 4111, 4170 and 5142
of 2006 and 20549/2016, consequential petitions questioning the various
impugned orders, which are the subject matter of W.P. Nos.16115/12, 11665/13,
3069/14, 3199/14, 13961/16, 14243/16 and 20550/16, have been filed
questioning the promotion/transfer and other allied reliefs as stated above and
prayer in these petitions having a lean on W.P. Nos.4170/06, 4111/06, 5142/06
and 20549/16, which attacks the Rules and the Amendment to the Rules, this
Court would deal with the four writ petitions in W.P. Nos. 4111, 4170 and 5142 of
2006 and 20549/2016 and the order passed in the said petitions would decide
the outcome of the consequential petitions.
16. On behalf of the petitioners, learned counsel appearing in the
respective petitions submitted that insertion of Section 9 (A) of the Amendment
Act, 2001, (Act 5 of 2001) is bad inasmuch as it usurps the power vested with the
Local Library Authorities in matters relating to appointment and conditions of
service of the personnel under the control of the Local Library Authorities.
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17. It is the further submission of the learned counsel for the petitioners
that the term 'Department of Public Libraries' does not find place in the parent
Act, but only the term 'Local Library Authorities' finds place and trying to replace
the term 'Local Library Authorities' with the term 'Department of Public Libraries'
is nothing but usurping the power of the legislature under the guise of framing of
Rules, which is per se impermissible.
18. It is the further submission of the learned counsel for the petitioners
that when Section 9 (c) of the Act vests power on the Local Library Authority to
employ staff as it considers necessary for such libraries, in contravention of the
provision of the Act, the Rules vesting the power on the Director of Public
Libraries is against the intent and spirit of the Act and, therefore, not in
consonance with the Act and, therefore, the same cannot be allowed to stand.
19. It is the further submission of the learned counsel for the petitioners
that the power of appointment delegated on an Authority by an act of legislature,
cannot be re-delegated to another authority by the sheer rule making power of
the Government, as the said re-delegation cannot be in abrogation of the
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Principal Act and any rule framed in exercise of Section 18 of the Act should be in
consonance with the Act and such rules can only supplement the parent Act and
cannot supplant the same.
20. It is the further contention of the petitioners that the provincialisation
of the service conditions of the staff of the Local Library Authorities vide G.O. Ms.
No.820 dated 3.5.1982 was done without disturbing the basic structure as
envisaged under the Act and the said Government Order was in concurrence with
the legal provisions mandated u/s 9 (c) of the Act and Rule 42 (2) of the Rules as it
stood prior to the amendment. However, the issuance of G.O. Ms. No.1735
dated 11.12.1989 altering the legal status of the staff in the Local Library
Authorities is in clear contravention of the setup mandated under the Act. The
formation of one unit system vide G.O. Ms. No.1735 by merging the Local Library
Authorities is against the spirit of the Act and drawing of inter se seniority
between the persons working in different Local Library Authorities, i.e., under
two different appointing authorities is wholly illegal and impermissible.
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21. It is the further submission of the learned counsel for the petitioners
that the Rules made in exercise of powers conferred u/s 18 of the Act travels
beyond the scope of the enabling Act and the specific power conferred by the
statute to make rules and regulations have been supplanted rather than being
supplemented, which renders the Rule inconsistent with the enabling Act and,
thereby, the said Rule relating to the the power being vested with the Director of
Public Libraries deserves to be struck down.
22. It is the vehement submission of the petitioners that once the enabling
Act provides for procedure for appointment of staff and the attendant conditions
of service of the staff employed in the Local Library Authorities, the prescription
of Rules providing for an appointing authority different from the one prescribed
under the Act, renders the Rule illegal and liable for quashment.
23. It is further submitted by the learned counsel appearing for the
petitioners that the impleaded respondent, cannot have legal legs to stand as he
is in no way affected by the amendment and in the absence of any legal injury,
the impleadment of the respondent is wholly impermissible. It is the further
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submission of the petitioners that the impleaded respondent is the recipient of
the benefits of the amendment and has not faced any injury as that of the
petitioners and, therefore, no necessity arises for impleading him, as the
petitioners have no grievance against the said individual, but their grievance is
only as against the amendment made to the Act and the rules.
24. It is th further submission of the learned counsel for the petitioners
that when the Local Library Authority is entrusted with the power to employ,
from time to time, such staff as it considers necessary for such libraries, the rule
prescribing the Director of Public Libraries as the appointing authority is is clear
contravention of the provisions of the Act and, therefore, the rule does not have
the requisite legal sanctity.
25. It is the further submission of the learned counsel for the petitioners
that amendment to Rule 42 (2) relating to 'appointment of the staff' the
expression that is sought to be substituted viz., 'appointment of the staff other
than Superintendent, Assistant, Accountant, Head Clerk, Junior Assistant and
Typist' is beyond the rule making power of the State, as what is sought to be
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substituted is something, which is being supplanted and not supplemented. The
amendment clearly nullifies the provision found in the Act, which is impermissible
and against the statute.
26. The sum and substance of the arguments advanced on behalf of the
petitioners is that the amendment to the Act and the modification to the Rules
are not only against the intent and purpose of the relevant provisions of the Act
and the Rules, but in clear violation of the Act and in abrogation of the powers
conferred on the State and the said act of the respondents have robbed the
petitioners of their valuable right of promotion within the limits of the Local
Library Authority, but has also acted in detriment to their service conditions by
their being transferred from one District to another District, under the control of
two different Local Library Authorities and, therefore, the said amendments
being in contravention of enabling Act, are liable to be struck down. In
consequence thereof, the transfers and promotions effected pursuant to such
amendment should also be set right on the amendments being struck down.
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27. In furtherance of the above submissions, it is submitted that in view of
the fact that the amendment is ultra vires the Constitution, and in the event of
this Court striking down the said amendments, the consequential prayers sought
for in the other writ petitions should also be allowed.
28. Per contra, learned Special Government Pleader appearing for the
respondents vehemently opposed the said contentions and submitted that the
amendment to the Act and the Rules are in accordance with law and they are in
no way inconsistent with the provisions of the enabling Act. It is the submissions
of the learned Special Government Pleader that the amendment to the Rules and
the Act in no way took away all the powers vested with the Secretary of the Local
Library Authorities relating to appointment as still as on date certain of the posts
were being filled up by the Secretary/District Library Officer, who is the
appointing authority. However, on and from the time when the services of the
employees of the various District Units were provincialised and, thereafter, were
made as Government servants, for certain of the posts belonging to higher
categories, the Director of Public Libraries was made the appointing authority.
However, still the posts in the lower categories were within the domain of the
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District Library Officer/Secretary, who was still the appointing authority. It is the
further submission of the learned Special Government Pleader that even for the
posts for which the District Library Officer is the appointing authority, the
approval of the Director of Public Libraries is a necessity. Therefore, the stand of
the petitioners that the Rules are beyond the Act is per se unjustified.
29. It is the further submission of the learned Special Government Pleader
that Rules can very well supplement the Act and in the present case, the Rules
having only given clarity as to the different appointing authorities for the
different posts and the said clarification cannot be said to be an act supplanting
the above said provision and the amendments, in no way, have gone beyond the
Act to be declared as unconstitutional.
30. It is the further submission of the learned Special Government Pleader
that the petitioners having accepted the promotion and transfer orders issued by
the 2nd respondent, viz., the Director of Public Libraries, when they stood
benefitted by such orders, cannot now turn back and say that the above
amendment to the Act and the Rules are unconstitutional. If the amendment to
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the Act and the Rules are unconstitutional, as is the case of the petitioners, then
the promotion and transfer orders issued by the 2nd respondent, viz., the Director
of Public Libraries in favour of the petitioners, also would be illegal. It is further
pointed out by learned Special Government Pleader that the above facts have not
been placed before this Court by the petitioners, which shows not only their
devious mind, but they have come before this Court with unclean hands.
31. It is the further submission of the learned Special Government Pleader
that the earlier round of litigation before the Tribunal relating to the
provincialisation of the employees of the Local Library Authority by issuance of
G.O. Ms. No.820 dated 3.5.82 and fixation of cut off date for fixation of inter se
seniority as 1.4.82 had resulted in the Tribunal issuing a direction that since no
rules were framed for the provision of one unit system as provided for in G.O. Ms.
No.1735, even as late as on 11.12.89, in the absence of any rules, the promotions
effected before the one unit system was directed to be not disturbed. It is the
submission of the learned Special Government Pleader that nowhere, the
formation of one unit system had been held to be bad by the Tribunal nor G.O.
Ms. No.1735 dated 11.12.89 was set aside. Even the appeal against the said
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order of the Tribunal by the respondent/State before the Hon'ble Supreme Court
ended in confirmation of the order of the Tribunal and, therefore, for all intent
and purposes, the one unit system, formulated under G.O. Ms. No.1735 has not
been struck down even by the Hon'ble Apex Court.
32. It is the further submission of the learned Special Government Pleader
that the delay in finalising and issuing the Rules relating to One Unit System
resulted in the Tribunal modifying the date of the coming into force of fixation of
seniority on the basis of the One Unit System and the concept of one unit system
and a combined seniority between all the members of the Local Library Authority
has not been found fault with and the said finding has not been challenged in any
manner and has attained finality. That being the case, it is not open to the
petitioners to contend that the one unit system formulated vide G.O. Ms. No.
1735 dated 11.12.89 and the consequential amendment to the Act and the Rules
cannot be said to be bad in law.
33. It is the further submission of the learned Special Government Pleader
that drawal of common seniority based on the one unit system should therefore
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be inferred to have been approved by the Apex Court and the order having been
accepted by the parties and no grievance was projected by the staff of the Local
Library Authorities, after a lapse of a decade and a half since the formation of
One Unit System and a lapse of five years from the date of the Amendment Act,
having enjoyed all the benefits culminated therefrom from the various
Government Orders, it is not open to the petitioners to come before this Court
and say that the respondents have gone beyond their legislative competence in
amending the Act and the Rules.
34. It is the further submission of the learned Special Government Pleader
that the petitioners have been promoted only based on the State-wide seniority
list issued by the Director of Public Libraries vide proceedings dated 6.3.2000.
Once the petitioners have accepted the State-wise seniority and the promotion
as early as in the year 2000, issued by the 2nd respondent, it does not lie in the
mouth of the petitioners to contend that said amendments making the 2nd
respondent as the appointing authority for certain posts is liable to be struck
down.
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35. In fine, it is the submission of the learned Special Government Pleader
that the Government, on a careful consideration of the entire issue, considering
the plight of the staff of the Local Library Authority spanning over the Districts
and realising the need for better service conditions and promotional
opportunities to the staff functioning in the Local Library Authorities, has passed
the relevant Government Orders forming the one unit system and has also issued
the consequential amendments to the Act and the Rules and that the said
amendments have been made in strict compliance with the enabling Act and is
within the legislative competence of the State and does not suffer the vice of
illegality as having overshot the enabling Act by supplanting the Act. Further,
except for the petitioners, more especially the petitioner in W.P. Nos.13961,
14243, 20549 and 20550/16, no grievance has been expressed by any of the
persons employed in the Local Library Authority, which clearly shows that the
petitioners, with a view to scuttle the whole process, which would be beneficial
to a vast majority of persons employed in the Local Library Authority across the
Districts and having all along enjoyed the benefit of promotion and transfer at the
hands of the 2nd respondent herein, as the appointing authority, are trying to put
brakes in the progress of the other members of the Local Library Authority.
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Therefore, the act of the petitioners in blowing both hot and cold deserves to be
negatived and the writ petitions ought to be dismissed.
36. Learned counsel appearing for the impleaded 4th respondent, while
adopted the submissions of the learned Special Government Pleader, further
submitted that on the basis of the one unit system, which was in consonance with
the legal provisions and on the basis of the amendments, has been granted
promotion in the year 2000 and has since retired from service. Keeping silent for
decades together and having enjoyed the benefits of promotion and transfer at
the hands of the 2nd respondent, the petitioners are estopped from challenging
the very same amendments, which had enured to their benefit at the pivotal
point of time. The submission of the petitioners that the 4th respondent is not an
aggrieved party sans merit, as it is to be pointed out that any misleading of this
Court by the petitioners would cause serious injury to the 4th respondent and,
therefore, it cannot be said that the 4th respondent has no grievance which makes
him an unnecessary party before this Court.
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37. Rejoinder has been filed by the petitioner in W.P. No.4111 of 2006, in
sum and substance, reiterating the very same grounds that have been urged in
the affidavit filed in support of the petition and appealing to this Court to quash
the impugned amendments as ultra vires the Constitution.
38. This Court paid its undivided attention to the various vehement
contentions advanced by the learned counsel appearing on either side and also
perused the various Government Orders, which are put in issue before this Court,
as also the amendment to the Act and Rules, the vires of which is in issue before
this Court.
39. The crucial issues that crop up before this Court for its consideration
are :-
i) Whether the amendment to Rule 42 (2) relating to appointing authority, being the Director of Libraries, is in consonance with the enabling Act. ii) Whether the Adhoc Rules framed under G.O. Ms. No. 60 dated 27.4.06 in exercise of powers conferred under Article 309 of the Constitution is in consonance with Section 9 (c) of the Act.
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iii) Whether the consequential orders passed in pursuance to the amendment to the Act and Rules is permissible. iv) To what relief, if any.
40. Before adverting to the issues above, it is but necessary to trace the
Library movement in the State through the legislative sphere over the past few
decades, starting from the enactment of The Tamil Nadu Public Libraries Act,
1948.
41. Originally, the Department of Public Libraries was divided into three
units, viz.,
i) The Directorate of Public Libraries;
ii) Connemara Public Library; and
iii) Local Library Authorities
42. The staff of the Directorate of Public Libraries and the Connemara
Public Library were treated as Government servants right from its very inception,
however, in respect of the staff of the Local Library Authorities, which was
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functioning in every district, the same was construed as a separate unit for the
purpose of appointment, promotion, seniority, etc. The above facts are not in
dispute.
43. Initially, the Director of School Education was also entrusted with the
task of Director of Public Libraries, but due to the ever increasing workload, vide
issuance of G.O. Ms. No.1034, Education Department, dated 5.7.1972, separate
post of Director of Public Libraries was sanctioned and in addition to it, additional
staff to assist the Director of Public Libraries was also sanctioned.
44. Thereafter, G.O. Ms. No.1218, Education Department, dated
16.7.1974, was issued, whereby, the District Educational Officers were relieved of
their work towards library and separate posts of District Library Officers were
created for the purpose of having better administrative control over the District
Library service and that the said officers were put under the direct administrative
control of the Director of Public Libraries. The Director of Public Libraries was
also directed to submit the draft rules for the post of District Library Officer for
approval of the Government.
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45. Proposal emanated from the Director of Public Libraries for inter se
transfer of the staff between two different Local Library Authorities, on the
request of the individuals and recommendation was made to the following
effect:-
“i) to transfer the Local Library Authority employees from one LLA to another at request; ii) to allow them in the new Local Library Authority, the pay last drawn by them; and iii) to place the transferee as junior most in the new Local Library Authority.”
46. Considering the abovesaid request of the Director of Public Libraries,
the Government, acceding to the said proposal permitted the transfer of the
employees of one Local Library Authority to another Local Library Authority to
be ordered by the District Library Officers concerned, after obtaining prior
approval of the Director of Public Libraries. The abovesaid order of the
Government has been in vogue still.
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47. In the aftermath of the above, repeated representations were made
by the employees of the Local Library Authorities to provincialise their services
and to declare them as Government servants. Though initially the Library
Reorganisation Committee constituted to suggest measures to improve the
library movement and the service conditions of the employees working in the
Local Library Authorities recommended for provincialisation of the services of the
employees of the Local Library Authorities, however, the same was not acceded
to by the Government, but instead of provincialising the services of the
employees of the Local Library Authorities, they were given the concessions
enjoyed by the Government servants. Inspite of granting the above, still requests
were made for provincialisation of the services of the employees of the Local
Library Authorities, which resulted in the Government examining the various
proposals in that regard, including the proposal of the Director of Public Libraries
and, accordingly, the Government decided to provincialise the services of the
Local Library Authorities without disturbing the set up as was in existence then.
Accordingly, vide the abovesaid G.O. Ms. No.820, the staff of the Local Library
Authorities were provincialised with effect from 1.4.1982 by continuing the same
existing setup. The abovesaid Government Order also mandated the Director of
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Public Libraries to submit necessary proposals for the amendment of the Tamil
Nadu Public Libraries Act, 1948 and the Rules thereunder.
48. On the heels of the above Government Order, came G.O. Ms. No.1630,
Education Science and Technology Department, dated 26.8.1983, wherein
necessary sanction was accorded for creation of temporary posts in respect of
each Local Library Authority from 1.4.1982 to 29.2.1984.
49. Vide G.O. Ms. No.1735, Education Department, dated 11.12.1989,
came the crucial movement for the staff of the Local Library Authorities. The
Government, with a view to revitalise the entire functioning of the library system
and also to provide adequate promotional opportunities, on the basis of the
proposal of the Director of Public Libraries for introduction of a single unit system
by combining two different wings into one single unit by drawing a common
seniority list at the State level, accepted the said proposal for introduction of one
unit system in the Department of Public Libraries, vide issuance of the above
government order. While the Government maintained the separate entity of the
Connemara Public Library, the others, viz., the Directorate of Public Libraries and
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the Local Library Authorities was merged as a single unit, with the following
conditions :-
“i) The One Unit System shall be adopted for purposes of maintaining a common seniority list at State level for postings, transfers, promotions, etc., of all categories of staff from the level of Assistants in the Tamil Nadu Ministerial service and from the level of Grade II Librarians in the Office of the Director of Public Libraries, Madras and in the Office of all Local Library Authorities in the State. ii) The seniority of the staff shall be fixed as on 1.4.82, i.e., the date on which the Local Library Authority staff were provincialised. iii) Steps should be taken to fix the inter se seniority between the staff in the Department of Public Libraries and the Local Library Authorities invoking General Rules 35 (aa) of Tamil Nadu State and Subordinate Services Rules.”
50. Pursuant to provincialisation of the staff members of the Local Library
Authorities with effect from 1.4.82, however, in the absence of any Rules being
framed by the time of issuance of G.O. Ms. No.1735, dated 11.12.1989, for
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almost a period of seven years, during which time, promotions were given and in
view of the fact that while fixing the inter se seniority, some of the staff members
were being reverted to a lower rank, original applications in O.A. Nos.1370/1990,
etc., were moved by such of those aggrieved persons before the Tamil Nadu
Administrative Tribunal, challenging the said reversion and downgrading the staff
from the post occupied by them and the Tribunal adverting to the fact that even
the provincialisation of the staff members of the Local Library Authorities having
been made as early as on 3.5.1982, by issuing G.O. Ms. No.820, however, inspite
of a lapse of seven years from then, no rules having been framed to regulate their
seniority and during the interregnum, promotions were granted, the Tribunal
held that the lacunae on the part of the respondents in not framing the rules
cannot be put against the employee and they cannot be reverted on the basis of
the cut off date, viz., 1.4.82, the date of their provincialisation. The Tribunal held
that only from the date the one unit system was introduced vide G.O. Ms. No.
1735 dated 11.12.1989, combined seniority could be reckoned and not
retrospectively and the Tribunal passed the following order :-
“1) Protection should be afforded to all promotions made till the date of actual issue of the amendment to the
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rules. The services should be regularised, increment and pay protection should be given. 2) For the purpose of seniority, panels may be drawn up for each year with reference to the actual number of vacancies that had arisen during the year based on combined single unit seniority in the respective categories as on 11.12.89 and qualification with reference to the crucial date for preparation of the panel in the year. In respect of appointments made in each year, the crucial date for considering the eligibility for inclusion in the panel for the year should be a date prior to the year. 3) While such panels may be the basis for seniority, promotion already made will stand. 4) If this will cause hardship, in that seniors would be denied the promotion for want of vacancies, the only course would be to create certain number of supernumerary posts in lieu of an equal number of posts in the lower category so that eligible persons whose claim have been overlooked due to improper implementation of the orders earlier may be suitably protected. Action may be taken accordingly after issue of the rules for implementation of the single unit system as directed in G.O. Ms. No.1735, dated 11.12.1989.”
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51. Against the said decision, the Special Leave Petition filed before the
Hon'ble Supreme Court by the respondents therein was dismissed confirming the
order passed by the Tribunal and permitting creation of supernumerary posts for
accommodating the individuals, who would be affected.
52. In continuation of the above orders relating to seniority passed by the
Tribunal, as confirmed by the Hon'ble Apex Court, vide Letter No.1080,
Education, Science and Technology dated 9.11.94, the Government ordered that
no promotion should be given to any staff of the Public Library Department based
on the District seniority and that action was called for, for the approval of the
adhoc rules, for implementing the State-wide seniority in pursuance of the one
unit system.
53. The above letter of the Government invited G.O. Ms. No.161,
Education, Science & Technology Department, dated 7.3.1996, the Government,
accepting the proposal of the Director of Public Libraries for the purpose of
granting promotions on the basis of district seniority for filling up the skeleton
posts of Inspector of Libraries, etc., pending finalisation of the rules, and
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permission was accorded to effect promotions in the Department of Public
Libraries based on district seniority so as to enable the Director of Public Libraries
to fill up the skeleton posts till such time adhoc rules for the various posts in the
Public Library Department are issued by the Government.
54. Thereafter, the Government, for the purpose of implementing the One
Unit System, framed adhoc rules for the pose of Head Clerk, Accountant, Junior
Assistant and Typist vide G.O. Ms. No.105, School Education Department, dated
19.4.99, in exercise of powers conferred under Article 309 of the Constitution of
India, wherein the Director of Public Libraries was mandated to be appointing
authority for the said posts.
55. Incidentally, it is to be pointed out that one of the petitioner, viz., the
petitioner in W.P. No.4111/06 filed writ petition in W.P. No.1919/04, challenging
the prescription of the Director of Public Libraries as the Appointing Authority
and a Division Bench of this Court, considering the rules held that the post of
Assistant not having been codified explicitly in the adhoc rules, the Director of
Public Libraries was held to be not the appointing/transferring authority insofar
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as the post of Assistant is concerned. It is to be pointed out that the Division
Bench has not quashed the adhoc rules, but rather held that the non-inclusion of
the post of Assistant in the said adhoc rules and making the Director of Public
Libraries as the appointing/transferring authority, is impermissible, as it does not
have the legal approval. It is further to be pointed out that relating to that
finding, the petitioner therein, who has also filed a series of petitions, which are
under consideration of this Court in the present batch, has not filed any appeal,
but satisfied himself with the relief that had been granted to him and allowed the
said order to attain finality.
56. Thereafter, Amendment Act No.5 of 2001 was passed by the
Legislative Assembly, which received the assent of the Governor on 12.2.01 in
and by which new sections, viz., 9-A, 9-B and 9-C, were inserted after Section 9.
As this Court is concerned in particular with Section 9-A, the same is extracted
hereunder for immediate reference :-
“9A. Persons employed in Local Library Authorities to be Government servants. - (1) Notwithstanding contained in any law for the time being in force, on and from the 1st day of April 1982, all persons employed in every Local
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Library Authority in the posts specified in the Schedule shall become whole-time Government servants. (2) Notwithstanding anything contained in this Act and subject to the provisions of Article 311 of the Constitution the Government may make rules regulating the Conditions of service of the persons employed in the Local Library Authorities in the posts specified in the Schedule.”
57. In pursuant to the amendment to the Act vide Amendment Act No.5 of
2001, the Government, in exercise of powers conferred u/r 18 of the Act,
amended Rule 42 (2) relating to the expression “appointment of the staff” as
found in the said rule. For better appreciation, the Rule 42 (2) as it stood prior to
amendment and after amendment are extracted hereunder:-
“In the said Rules, in Rule 42, in sub-rule (2) For the expression “appointment of the staff” the expression “appointment of the staff other than Superintendent, Assistant, Accountant, Head Clerk, Junior Assistant and Typist” shall be substituted”
58. Rule 42 (2) as it read after amendment is as under :-
42. (I) The duties of the Chairman of the Local Library Authorities shall be as follows:-
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* * * * * * * * (2) 1The duties of the Secretary of the Local Library Authority shall be as follows:- The Secretary of the Local Library Authority shall be the convenor for the meetings of the said Authority. He shall also be responsible for the appointment of the staff, other than Superintendent, Assistant, Accountant, Head Clerk, Junior Assistant and Typist, Inspector of Libraries, Librarian Grade-1, Librarian Grade-II, Stock Verification Officer, Building Supervisor, Building Maistry and Driver, proper control and supervision of the office as well as the libraries of the Local Library Authority including its fund and shall sign all orders or cheques against the library fund.”
59. Following the above amendments to the rules as well as the Act, G.O.
Ms. No.60, School Education Department, dated 27.4.06, has been issued in and
by which the certain modifications were made to the Tamil Nadu Educational
Subordinate Service General and Special Rules pertaining to the holders of
permanent post which was also made applicable to the temporary posts wherein,
the Director of Public Libraries was made the appointing authority for the posts
belonging to certain of the categories as shown in the said Government Order.
Aggrieved by the change of appointing authority, being not in consonance with
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Section 9 (c) of the Act, petitions, as noted above, have been filed questioning the
said modification.
60. Since the whole issue revolves around the amendment made to the
Act and the Rules, it is just and necessary to refresh upon the various provisions
of the Act and the Rules, as it stood prior to the amendment vis-a-vis the present
amendment to Section 9 and Rule 42 (2).
61. Rule 9 of the Act, as it stood prior to the insertion of 9-A, 9-B and 9-C,
are as under :-
“9. Powers of Local Library Authorities. - A Local Library Authority may - (a) provide suitable lands and buildings for public libraries and also the furniture, fittings, materials and conveniences requisite therefor; (b) stock such libraries with books, periodicals, newspapers, maps, works and specimens of art and science, lantern slides, cinema reels and any other thing suitable for their purpose. (c) employ from time to time such staff as it considers necessary, for such libraries; (d) with the previous sanction of the Government, close or discontinue a public library or change the site thereof:
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[(e) accept, with the previous sanction of the Director or the Government, any gift of books, or with the previous sanction of the Government, any other gift or endowment for any purpose connected with is activities:] (f) provide for lectures and the holding of classes; and (g) in general, do everything necessary to carry out the provisions of this Act.”
62. Section 18 relates to the rule making power of the Government for the
purpose of enforcing the provisions of the Act. For better clarity, the same is
extracted hereunder :-
“18. Power to make rules. - (1) The Government may, by notification, make rules consistent with this Act to carry out the purpose thereof (2) In Particular and without prejudice to the generality of the foregoing power, such rules may provide for-_ (a) all matters required or allowed to be prescribed under this Act; (b) the method of conduction the election of members to Local Library Authorities and all matters connected therewith; (c) the matters to be included in the scheme referred to in section 8; (d) the maintenance of the minutes of the proceedings of Local Library Authorities;
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(e) the publication of audited statements of the accounts of such Authorities and of the reports of the auditors; and (f) a Library Grant-in-aid Code, regulating the Government's aid to, and the declaration, inspection and co-ordination by the Director of aided libraries and the standard to be maintained by such libraries. 18A. Power to amend Schedule. - The Government may, by notification, alter, amend or add to, the Schedule or omit any of the posts specified in the Schedule and upon the issue of such notification, the Schedule shall be deemed to be amended accordingly.”
63. Rule 42 (2) which according to the petitioners provided for the
appointment of staff by the Local Library Authority, as it stood prior to the
amendment, is as under :-
“42...... (2) The duties of the Secretary of the Local Library Authority shall be as follows :- The Secretary of the Local Library Authority shall be the convenor for the meetings of the said Authority. He shall also be responsible for the appointment of the staff, proper control and supervision of the office of the Local Library Authority including its fund and shall sign cheques if authorised by the Chairman under rule 24 in Chapter III.”
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64. Rule 42 (2) has been amended and pursuant to the amendment, it
reads as under :-
“42...... (2) The duties of the Secretary of the Local Library Authority shall be as follows :- The Secretary of the Local Library Authority shall be the convenor for the meetings of the said Authority. He shall also be responsible for the appointment of the staff, other than Superintendent, Assistant, Accountant, Head Clerk, Junior Assistant and Typist, Inspector of Libraries, Librarian Grade-1, Librarian Grade-II, Stock Verification Officer, Building Supervisor, Building Maistry and Driver, proper control and supervision of the office as well as the libraries of the Local Library Authority including its fund and shall sign all orders or cheques against the library fund.”
65. There is no quarrel with regard to the Rule making power of the
Government as provided for u/s 18 of the Act. However, the main grievance of
the petitioners is only to the extent that the amendments made by the
Government are inconsistent with the parent Act, viz., the Tamil Nadu Public
Libraries Act, more particularly Section 9 (c) and, therefore, the said amendment
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made with regard to modification in the 'Appointing Authority' does not have
legal sanctity and equally the amendment made to Section 42 (2) in and by which
the power given to the District Library Officer/Secretary, the then appointing
authority, has been stripped off and the same has been conferred on the
Director of Public Libraries, is also not in consonance with the parent Act and,
therefore, both the amendments deserve to be struck down as ultra vires.
66. It is to be pointed out that in exercise of the power conferred under
Article 309 of the Constitution, the Government has thought it fit to make the
above amendments. Article 309 of the Constitution, through which the power
flows to the Government for making the necessary amendments to the Acts and
Rules for the purpose of regulating recruitment and conditions of service, is
quoted hereunder :-
“309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts
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in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.”
67. Section 9 (c) of the Act is the pivotal provision dealing with the
appointment of staff to the Local Library Authority, which provides that “A Local
Library Authority may employ from time to time such staff as it considers
necessary for such libraries.” The petitioners contend that the head of the Local
Library Authority being the District Library Officer, as per the Act, the provision
made in the Rules vide G.O. Ms. No.60 dated 27.4.06 and the amendment made
to Rule 42 (2) by modifying the appointing authority in respect of certain
categories of staff in exercise of powers under Article 309 of the Constitution are
not in consonance with Section 9 (c) and are, therefore, ultra vires. However, it is
countered otherwise by the respondents submitting that the Local Library
Authority has been given only a discretion with regard to appointment, which is
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always subject to the approval of the Director of Public Libraries. Therefore, the
expression “the Local Library Authority may” read along with “as it considers it
necessary” only confers discretionary powers and no exclusive authority is
granted to the District Library Officer in the matter of appointment of staff.
68. From the above, it is patently imperative that this Court has to, at the
outset, decide as to whether the Local Library Authority has been granted
exclusive power in the matter relating to appointment of staff or is it a
discretionary power, which read in tandem with Section 18, viz., the Rule making
power of the Government, vests power on the Government to modify/amend
the appointing authority, thereby making the said rule in consonance with the
Act. In the above context, the interpretation of the word “the Local Library
Authority may” read along with “as it considers it necessary” used in Section 9 (c),
thereby assumes significance.
69. The first fundamental to be appreciated in relation to law relating to
public employment is that almost every aspect thereof is governed by statutory
provisions which are mostly statutory rules. In Roshan Lal Tandon – Vs – Union
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of India (AIR 1967 SC 1889), a Constitution Bench of the Supreme Court
authoritatively laid down the proposition that although the origin of Government
services is contractual, there being an offer and acceptance in every case, yet,
once appointed to the post or office, the government servant acquires a status
and his rights and obligations are no longer determined by consent of both
parties but by statute or statutory rules which might be altered unilaterally by
the Government. The relevant portion of the decision of the Constitution Bench
is quoted hereunder :-
“6. We pass on to consider the next contention of the petitioner that there was a contractual right as regards the condition of service applicable to the petitioner at the time he entered Grade ‘D’ and the condition of service could not be altered to his disadvantage afterwards by the notification issued by the Railway Board. It was said that the order of the Railway Board dated January 25, 1958, Annexure ‘B’, laid down that promotion to Grade ‘C’ from Grade ‘D’ was to be based on seniority-cum-suitability and this condition of service was contractual and could not be altered thereafter to the prejudice of the petitioner. In our opinion, there is no warrant for this argument. It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his
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rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. The matter is clearly stated by Salmond and Williams on Contracts as follows:
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“So we may find both contractual and status- obligations produced by the same transaction. The one transaction may result in the creation not only of obligations defined by the parties and so pertaining to the sphere of contract but also and concurrently of obligations defined by the law itself, and so pertaining to the sphere of status. A contract of service between employer and employee, while for the most part pertaining exclusively to the sphere of contract, pertains also to that of status so far as the law itself has seen fit to attach to this relation compulsory incidents, such as liability to pay compensation for accidents. The extent to which the law is content to leave matters within the domain of contract to be determined by the exercise of the autonomous authority of the parties themselves, or thinks fit to bring the matter within the sphere of status by authoritatively determining for itself the contents of the relationship, is a matter depending on considerations of public policy. In such contracts as those of service the tendency in modern times is to withdraw the matter more and more from the domain of contract into that of status.” (Salmond and Williams on Contracts, 2nd Edn. p. 12).”
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70. Another Constitution Bench of the Supreme Court, in State of U.P. - Vs
– Babu Ram (AIR 1961 SC 751) has pointed out that statutory rules and
regulations have the force of law and for all purposes of construction or
obligation, they are to be treated exactly as if they were in the Act. They cannot
be described as, or equated with, administrative directions and even a direction
given under statutory powers will have the force of law if the statutory scheme
so suggests.
71. Keeping the principles enunciated by the Constitution Bench of the
Hon'ble Supreme Court in mind, in the decisions supra, this Court is fastened
with the task of finding out whether the words “the Local Library Authority may”
used in the parent Act in Section 9 (c), is a bar for the Government to make Rules
or cause amendment of the Rules, which is not in consonance with the Act.
72. Ordinarily, the word “may” is not a word of compulsion. It is an
enabling word and only confer capacity, power or authority and imply discretion.
It is used in a statute to indicate that something may be done which prior to it
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could not be done. (See Principles of Statutory Interpretation – G.P. Singh Edn.
14, Page 519).
73. The Hon'ble Supreme Court, in the case of State of Kerala & Ors. - Vs –
Kandath Distilleries (2013 (6) SCC 573), while dealing with the expression
“Commissioner may” “with the approval of the Government” used is Section 14 of
the Kerala Abkari Act, 1902 and Rule 4 of the Kerala Foreign Liquor
(Compounding, Blending and Bottling) Rules, 1975, using the expressions “the
Commissioner may” “if he is satisfied” confer discretionary powers on the
Commissioner and that such power is not coupled with duty. The relevant
portion of the said order is extracted hereunder :-
“25. The legislature, in its wisdom, has given considerable amount of freedom to the decision-makers, the Commissioner and the State Government since they are conferred with the power to deal with an article which is inherently injurious to human health. 26. Section 14 of the Act indicates that the Commissioner can exercise his powers to grant licence only with the approval of the State Government because the State has the exclusive privilege in dealing with liquor. The powers conferred on the Commissioner and the State Government
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under Section 14 as well as Rule 4 are discretionary in nature, which is discernible from the permissible language used therein. * * * * * * * Discretion and duty 28. Discretionary power implies freedom of choice, a competent authority may decide whether or not to act. The legal concept of discretion implies power to make a choice between alternative courses of action (Discretionary Justice, Davis, 1969). The statute has conferred discretionary power on the Commissioner and the State Government but not discretion coupled with duty because they are dealing with a subject-matter on which the State has exclusive privilege. Permissive language used by the statute in Section 14 and the rule-making authority in Rule 4 gives the State Government and the Commissioner, no mandatory duty or obligation to grant the licence except perhaps to consider the application, if the liquor policy permits so. 29. Section 14 uses the expression “Commissioner may”, “with the approval of the Government” so also Rule 4 uses the expressions “Commissioner may”, “if he is satisfied” after making such enquiries as he may consider necessary “licence may be issued”. All those expressions used in Section 14 and Rule 4 confer discretionary powers on the Commissioner as well as the State Government, not a
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discretionary power coupled with duty. The powers, conferred on the Commissioner as well as the Government, have to be understood in the light of the constitutional scheme bearing in mind the fact that the trade or business which is inherently harmful can always be restricted, curtailed or prohibited by the State, since it is the exclusive privilege of the State. No duty is, therefore, cast on the Commissioner to grant a licence for establishing a distillery unit and no right is conferred on any citizen to claim it as a matter of right. The State can always adopt a “restrictive policy” e.g. reducing the number of licences in a particular district or a particular area, or not to grant any licence at all in a particular district, even in cases where the applicants have satisfied all the conditions stipulated in the rules and the policy permits granting of licences. In other words, the satisfaction of the conditions laid down in the 1975 Rules would not entitle an applicant as a matter of right to claim a distillery licence which is within the exclusive privilege of the State.”
74. When a capacity or power is given to a public authority, there may be
circumstances which couple with the power a duty to exercise it, or the manner
in which it may only be exercised. As stated by Cotton L.J., in In re, Nichols – Vs –
Baker (59 LJ Ch 661 @ P. 663), “May” can never mean must, so long as the
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English language retains its meaning; but it gives a power and then it may be a
question, in what cases, when any authority or body has a power given by it by
the word “may”, it becomes its duty to exercise that power.
75. In Official Liquidator – Vs Dharti Dhan (AIR 1977 SC 740), Beg, J., as
His Lordship then was, held that “if the conditions in which the power is to be
exercised in particular cases are also specified by a statute, then on fulfilment of
those conditions, the power conferred becomes annexed with a duty to exercise it
in that manner”. From the above observations of Beg., J, above, it is implicitly
clear that the conditions in which the power is to be exercised in particular cases
should be specified by the statute.
76. Further, it is widely accepted in legal parlance that when an Act
conferring the power does not mention the conditions or the circumstances in
which the power is to be exercised it will be construed as discretionary and
directory and not mandatory. The word “may” would be used in the sense of
“shall” or “must” by the Legislature while conferring power upon a high dignitary
and that when the context shows that the power is coupled with an obligation,
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the word “may” which denotes discretion should be construed to mean a
command. Only in such a scenario, when the such power is conferred upon a
high dignitary, should the said direction be mean to be a command and a
mandatory obligation.
77. Therefore, from the above, it clearly transpires that generally a power
conferred on an authority by use of the word “may” in the to rule/act on a
particular matter does not confer an exclusive jurisdiction and take away the
jurisdiction of some other authority to decide the same matter. This view has
been propounded by the Hon'ble Supreme Court in the case of Wellington
Association – Vs – Kirit Mehta (AIR 2000 SC 1379 :: 2000 (4) SCC 272).
78. From the ratio laid down above in the decisions supra clearly reveal
that the the use of the words “may” and “as it considers it necessary” in Section 9
(c), on an authority is only a discretionary power and not a compulsive power
and in such a situation the decision of the Hon'ble Apex Court in Wellington
Association case (supra), stands squarely attracted.
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79. It is evident that the Act had been enacted in the year 1948 and had
come into force in the year 1950, at which point of time, the Local Library
Authorities were demarcated as separate entities, one not having nexus with the
other and each of the Local Library Authorities were given separate control with
regard to its administration. In such a backdrop, the enabling provision in
Section 9 (c), with regard to the power of the District Library Officer relating to
power of appointment requires to be visualised. It is to be pointed out that all
the Local Library Authorities were brought under the administrative control of
the Director of Public Libraries vide G.O. Ms. No.1218 dated 16.7.1974 and
administrative control was vested with the Director of Public Libraries. Once the
administrative jurisdiction is made exercisable by the Director of Public Libraries,
it is needless to say that the Director of Public Libraries gets clothed with the
power to appoint staff in the Local Library Authority. The above finding of this
Court flows from G.O. Ms. No.1386 dated 7.7.1981 in and by which the transfer
of employees from one Local Library Authority to another Local Library Authority
was permitted to be made by the District Library Officer after obtaining prior
approval of the Director of Public Libraries. If this Court is to accept the
contention of the petitioners that it is only the District Library Officer, who has
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exclusive jurisdiction relating to appointment, then no transfer of employees
between two different appointing authorities would be permissible. The
permissibility for transfer flows from the above G.O. Ms. No.1386 dated
7.7.1981, whereby, transfer having been permitted to be made by the District
Library Officer on obtaining prior approval of the Director of Public Libraries,
though only mutually, and the employees having accepted the same, it does not
lie in the mouth of the petitioners to contend that the Director of Public Libraries
cannot be made the appointing authority by framing the requisite Rules.
80. Section 9 (c) of the Act only employing the word “may” and “as it
considers necessary”, therefore, does not confer exclusive power on the District
Library Officer to be the appointing authority insofar as the staff of the
concerned Local Library Authority. In the backdrop of the above it is to be held
without any iota of doubt that the power of appointment vested with the District
Library Officer is only discretionary and not mandatory, as is evident from the
usage of terms forming the said provision and also on a consideration of the
entire gamut of facts as revealed by the records placed before this Court.
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81. Further, in and by G.O. Ms. No.820, Education Science & Technology
Department, dated 3.5.1982, on the request of the employees of the Local
Library Authorities for provincialisation of their service and to declare them as
Government servants, provincialisation of the service of the persons employed in
the Local Library Authorities was acceded to, however, with a rider that the Local
Library Authorities will continue to function in the same setup and thrive and
sustain on the collection of Library Cess. It is also evident from G.O. Ms. No.
1630, Education Science & Technology Department dated 26.8.1983 that posts
specified in Annexure-I to the said Government Order, have been sanctioned by
the Government in respect of each Local Library Authority on temporary basis
from 1.4.1982 to 29.2.1984.
82. Vide G.O. Ms. No.1735, Education Department dated 11.12.1989, one
unit system was proposed and formed by the Government combining the various
Local Library Authorities and the Director of Public Libraries into a single unit and
laying down the manner in which the seniority of the staff members of the
different Local Library Authorities and the Director of Public Libraries should be
reckoned, which is to be in consonance with Rule 35 (aa) of the Tamil Nadu State
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and Subordinate Service Rules. However, the cut off date being fixed as 1.4.82
on the basis of the order of provincialisation was deprecated by the Tribunal for
the reasons that inspite of a lapse of a almost decade, no service rules were
framed, fixing the cut-off date as 1.4.82 for the purpose of fixing the inter se
seniority and, accordingly, direction was issued for fixing the seniority only on
and from 11.12.1989, i.e., the date of G.O. Ms. No.1735 in and by which one unit
system was approved.
83. Once the employees of the Local Library Authorities have submitted to
the one unit system as above, they become a single unit and, therefore, the
enactment of Act 5 of 2001 by insertion of new Sections, more particularly 9-A
cannot be found fault with, as the same has been done by the Government well
within the Rule making powers provided u/s 18 of the Act.
84. Further, it is seen that Section 9-A (2) mandates that the Government
may make rules regulating the conditions of service of persons employed in the
Local Library Authorities in the posts specified in the Schedule. The above
amendment, in the considered opinion of this Court, is well within the power of
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the Government u/s 18 of the Act as held by the Hon'ble Supreme Court in
Roshan Lal Tandon's case (supra) to the effect that the Government is vested
with powers to fix the service conditions of its employees unilaterally. Equally,
the amendment made to Rule 42 (2) in and by which the Director of Public
Libraries was made as the appointing authority for certain of the posts is also
within the power of the Government, as this Court has already held that the
provision contained in Section 9 (c) of the Act is only discretionary and not
exclusive and, therefore, the amendment sought to be made to Section 9 and
Rule 42 (2) are well within the rule making power of the Government and by no
stretch of imagination could it be said to be inconsistent with the Act. Further, it
is also to be pointed out that once the one unit system has been accepted by the
employees of all the Local Library Authorities without any demur and only the
cut-off date for the inter se seniority was put in issue before the Tribunal and the
Tribunal has also accepted the one unit system, which has ultimately attained
finality before the Hon'ble Supreme Court, and no fault having been found with
the same, the petitioners are estopped from questioning the move of the
Government to amend the rules, which is in consonance with Section 18 of the
Act.
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85. Further, it is the categorical stand of the respondents that promotions
and transfers have been effected on the basis of the amendments to which the
petitioners were also party. It is further to be pointed out by the respondents
that one of the petitioner herein had sought for transfer, which had been
approved by the Director of Public Libraries and the said petitioner had also
accepted the said transfer, of his choice, and had joined the said place. Once the
petitioner had accepted to the authority of the Director of Public Libraries as the
approving authority, for the purpose of transfer, as mandated by G.O. Ms. No.
1386, equally, amendment making the Director of Public Libraries as appointing
authority for certain of the higher posts cannot be said to be against the spirit of
the parent Act.
86. Further, it transpires from the affidavit filed by the petitioner in W.P.
No.4111/06 relating to the earlier round of litigation in W.P. No.1919/04, in and
by which the petitioner has challenged the order of transfer and the Division
Bench of this Court, after exhaustive discussion, though had allowed the petition
only insofar as the post relating to Assistant having not been found either in the
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Special Rules or General Rules as framed under G.O. Ms. No.105 dated 19.5.99,
but did not hold that the rule was bad insofar as the other posts, which were
within its ambit. Neither the petitioner in W.P. No.4111/06 has challenged that
portion of the finding nor any other person had challenged that portion of the
finding. The said finding has been allowed to attain finality by efflux of time.
That being the case, it is not open to the petitioners to contend that the Director
of Public Libraries being made the appointing authority for a category of staff,
envisaged u/r 42 (2) is beyond the legislative competence of the State and is
inconsistent with the parent Act does not appeal to this Court.
87. In Kesavananda Bharati – Vs – State of Kerala (1973 (4) SCC 225), the
Supreme Court has held that the main object behind the theory of constitutional
identity is continuity and within the continuity of identity, changes are admissible
depending upon the situation and circumstances of the day.
88. It has been observed by Lord Denning in (Seaford Court Estates – Vs -
Asher (1949 (2) All ER 155) has observed that it would be idle to expect every
statutory provision to be drafted with divine prescience with perfect clarity and
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that statuses must have some purpose or object, whose imaginative discovery is
judicial craftsmanship and one should not always cling to literalness and should
seek to endeavour to avoid an unjust or absurd result as otherwise it would be
nothing but making a mockery of legislation.
89. While deciding on the constitutionality of a valid rule, the Supreme
Court, in the case of Reserve Bank of India – Vs – C.N.Sahasranaman (AIR 1986
SC 1830) has given a caution to the Courts to evolve a balanced and pragmatic
approach in while deciding the validity of the rules. In this context, the Supreme
Court held as under :-
“It has to be borne in mind that in service jurisprudence there cannot be any service rule which would satisfy each and every employee and its constitutionality has to be judged by considering whether it is fair, reasonable and does justice to the majority of the employees and fortunes of some individuals is not the touchstone.” (Emphasis Supplied)
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90.The Hon'ble Supreme Court in St. Johns Teachers Training Institute v.
Regional Director, NCTE, (2003 (3) SCC 321) reiterating the law on the subject of
delegated legislation, considering the law on the subject, held as under :-
“10. A regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and regulations are all comprised in delegated legislations. The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The legislature may, after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the rule, after coming into force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statutes. Rules and regulations made by reason of the specific power
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conferred by the statutes to make rules and regulations establish the pattern of conduct to be followed. Regulations are in aid of enforcement of the provisions of the statute. The process of legislation by departmental regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of rules and regulations is conferred by Parliament. The main justification for delegated legislation is that the legislature being overburdened and the needs of the modern-day society being complex, it cannot possibly foresee every administrative difficulty that may arise after the statute has begun to operate. Delegated legislation fills those needs. The regulations made under power conferred by the statute are supporting legislation and have the force and effect, if validly made, as an Act passed by the competent legislature. (See Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi [(1975) 1 SCC 421 : 1975 SCC (L&S) 101 : AIR 1975 SC 1331] .) 11. It will be useful to reproduce here a passage from Administrative Law by Wade & Forsyth (8th Edn., 2000, at p. 839): “Administrative legislation is traditionally looked upon as a necessary evil, an unfortunate but inevitable infringement of the separation of powers. But in reality it is no more difficult to justify it in theory than it is possible to do without it in practice. There is only a hazy borderline between legislation and administration, and
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the assumption that they are two fundamentally different forms of power is misleading. There are some obvious general differences. But the idea that a clean division can be made (as it can be more readily in the case of the judicial power) is a legacy from an older era of political theory. It is easy to see that legislative power is the power to lay down the law for people in general, whereas administrative power is the power to lay down the law for them, or apply the law to them, in some particular situation.” 12. The question whether any particular legislation suffers from excessive delegation has to be decided having regard to the subject-matter, the scheme, the provisions of the statute including its preamble and the facts and circumstances in the background of which the statute is enacted. (See Registrar of Coop. Societies v. K. Kunjabmu [(1980) 1 SCC 340 : AIR 1980 SC 350] and State of Nagaland v. Ratan Singh [AIR 1967 SC 212 : 1967 Cri LJ 265] .) It is also well settled that in considering the vires of subordinate legislation one should start with the presumption that it is intra vires and if it is open to two constructions, one of which would make it valid and the other invalid, the courts must adopt that construction which makes it valid and the legislation can also be read down to avoid its being declared ultra vires.”
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91. From the above authoritative pronouncements, it is implicitly clear
that a legislation should be considered holistically and it is not right to split ends
while ascertaining the intent and purpose behind the legislation. When the Act
had been enacted in the year 1948, Local Library Authority created in each
district were directed to function within the district and the library cess collected
was directed to be used for the purpose of maintaining the library and in that
view, discretion was vested with the Local Library Authority, viz., the District
Library Officer/Secretary on the question of appointment of staff. That is
because the funds that would be available with the Local Library Authority would
be well within the knowledge of the District Library Officer, who, on judicious
application of mind, would decide on the appointment of staff, which
necessitated the use of the words “The Local Library Authority may” and
“considers it necessary”. Therefore, the intent that could be deciphered from
the above is manifestly clear that the Legislature has only clothed on the District
Library Officer with a discretionary power and has not granted exclusive power
with regard to appointment of staff.
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92. Further, on and after the formation of one unit system, the Local
Library Authorities having been brought under a single umbrella and the funds
for the manning and running of the libraries were being provided for by the
Government over and above the funds collected as library cess, the financial
burden cast on the Government, in turn, had resulted in the Government
invoking the power u/s 18 of the Act to frame the Rules, including codification of
the appointing authorities. Without devolution of the said power with regard to
appointment of staff on the Government, looking upon the Government only to
meet the financial obligation of the libraries, including the salary to the persons,
without there being any administrative control over their appointments and
other service conditions would not be conducive to the proper functioning of the
establishment, more so, when all the Local Library Authorities have been
brought under a single window and made a single unit.
93. Further, when the one unit system stood established for the purpose
of transfer, promotion, seniority and other service conditions, which had been
accepted even before the Tribunal while the question of fixation of inter se
seniority alone based on a cut-off date without there being any rules put in place,
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was put in issue, no grievance was expressed as to the formation of one unit
system as also the fixation of inter se seniority. Further, while the Tribunal
deliberated upon the issue compositely, except for fixation of cut-off date of
1.4.82, in the absence of any rules having been put in place till 1989 when G.O.
Ms. No.1735 was issued, no fault was expressed with regard to either bringing
the employees of the Local Library Authorities as Government employees. Such
being the case, there was no challenge made to the one unit system, as not in
consonance with Section 5 (1) of the Act, which delimited the Local Library
Authority for each district, questioning the power of the Government only in
relation to codifying different appointing authority for different cadre of staff
members, cannot be reasonably accepted. Therefore, in consonance with the
legislative intent, rules have been framed by providing for different appointing
authorities based on the hierarchical position of the staff, which cannot be said
to be an over reach of the rules, thereby, making the rules inconsistent with the
Act.
94. One other crucial aspect which should not be lost sight of is the fact
that provincialisation of was done vide G.O. Ms. No.820 dated 3.5.82, fixing the
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cut-off date for inter se seniority as 1.4.82 and, thereafter, G.O. Ms. No.1735
dated 11.12.1989 was passed forming the one unit system and making all the
members of the Local Library Authorities as Government servants. Thereafter,
vide G.O. Ms. No.105 dated 19.4.1999 was passed, wherein the Director of Public
Libraries was made the appointing authority for certain posts prescribed therein.
Amendment was thereafter made to the Act, vide Amendment Act 5 of 2001 by
insertion of Sections 9-A, 9-B and 9-C on 12.2.01. Following the same, G.O. Ms.
No.220 dated 16.12.2005 and G.O. Ms. No.60 dated 27.4.2006 were passed in
and by which amendments were made to Rule 42 (2) of the Rules and making the
Director of Public Libraries as the appointing authority for certain posts.
95. It is evident from the records that except for the challenge made to
G.O. Ms. No.60 dated 27.4.2006 by filing W.P. Nos.4111, 4170 & 5142 OF 2006
and the consequential writ petitions questioning the transfer orders having been
filed in the year 2014, the whole issue was silent only for W.P. No.20549/16 to be
filed in and by which G.O. Ms. Nos.820, 1735, 161, 105 and 220 have been
challenged. Inspite of the amendments having been made as early as in the year
2005 and 2006 and the petitioner having been aware of the same and very many
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representations have been filed before the respondents for one relief or other,
the petitioner in W.P. No.20549 of 2016 has not thought it fit to question either
the constitutionality of the amendments by putting the above Government
Orders in issue. However, only representations have been filed by the petitioner
in W.P. No.20549/16 and even a cursory look at those representations leaves a
bitter taste in the mouth of this Court to say anything further, as the said
representations have been couched in such a fashion as to undermine the
authority of the superior officers. However, this Court is not amplifying anything
further on the act of the petitioner in W.P. No.20549/16.
96. For the discussions aforesaid, this Court is of the considered view that
the amendments made to the Act and Rules vide the Government Orders
impugned herein and the Amendment Act No.5 of 2001 and Rule 42 (2) of the
Rules do not suffer the vice of illegality to be declared as ultra vires the
Constitution. The amendments put in issue before this Court are perfectly intra
vires and no interference is warranted with the orders impugned herein.
Accordingly, W.P. Nos.5142 4170 and 4111 of 2006 and 20549 of 2016 are
dismissed.
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97. Consequent upon the dismissal of the above writ petitions - W.P. No.
16115 of 2012 filed for consequential promotion; W.P. No.11665 of 2013 filed for
consideration of the representation of the petitioner for consequential
promotions in the same District Central Library; W.P. No.3069/14 filed for
consequential promotions with retrospective effect; W.P. No.3199/14 filed for
promotion in the same Local Library Authority by quashing the consequential
promotional transfer order; W.P. No.13961/16 filed for disbursement of salary to
the petitioner with effect from 14.1.16 along with arrears; W.P. No.14243/16
filed questioning the relieving proceedings and the transfer proceedings and for
reinstatement of the petitioner in his original place in the 3rd respondent office
and for a further direction to the 3rd respondent to conduct fresh enquiry by
offering a reasonable opportunity to the petitioner and W.P. No.20550 of 2016
filed against the temporary promotional transfer order on the basis of the draft
seniority list and final seniority list and for promotion of the petitioner with
retrospectivity are also dismissed, as all the those reliefs being in consequence to
the amendments made to the Rules and the Act and this Court having held that
the amendment to the Rules and the Act being intra vires, the reliefs sought for
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does not survive any further. Accordingly, W.P. Nos.16115/12, 11665/13,
3069/14, 3199/14, 13961/16, 14243/16 and 20550/16 are also dismissed.
98. Though this Court has dismissed the above writ petitions for the
reasons aforesaid, however, the better Management of the Libraries is sine qua
non to the intellectual upliftment of the society. In this scenario, the functioning
of the Libraries throughout the State vis-a-vis its maintenance and upgradation
as envisaged under the Tamil Nadu Public Libraries Act requires attention at the
hands of this Court.
99. The libraries of the world are under threat. Jon Bing makes a point “To
ask why we need libraries at all, when there is so much information available
elsewhere, is about as sensible as asking if roadmaps are necessary now that
there are so very many roads.” Libraries are essential in a process of giving
citizens access to knowledge. In digital times they are needed more than ever
before. In times of the internet, everyone can visit a library without leaving home.
It’s just a matter of opening a library website, and you can not only borrow an
ebook but also ask the librarian an online question. Most importantly, however,
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libraries are the places where you can expect smart and clear answers to even
the most difficult questions.
100. A society, more especially, the human society, has several different
meanings. It refers to people living together in a community, sharing common
interests and may be having distinctive customs and traditions. The term ‘society’
may also be used to refer to various distinctive cultural groups of people. To put it
simply, a society is an aggregate of individuals living together as interdependent
members in a highly structured system of community.
101. Libraries store the energy that fuels the imagination. They open up
windows to the world and inspire us to explore and achieve, and contribute to
improving our quality of life. As David Lankes (Professor and Director of the
School of Library & Information Science at the University of South Carolina) aptly
put it, “Bad libraries build collections, good libraries build services, great libraries
build communities."
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102. Psychologically, people identify themselves with the idea of being
part of an organized group for unity and strength. The purpose of forming people
into societies is therefore to provide protection, continuity, security and identity.
The intellectual skills of the citizens is the guiding factor in the matter of assessing
the protection, security and identity of the said society. In this regard, library
plays a vital part, as it helps in developing and moulding the character and
conduct of the members of the society. The proactive participation of the
members in the utilisation of the library within their locality tends to improve the
standard of living of the entire community and the harmony of the masses in the
said community.
103. As of 31.3.2019, the total number of membership in the various
libraries across the State, as could be culled out from the website of the
Government of Tamil Nadu is given below :-
Total Members as S. No. District on 31.03.2019 1 Connemara Public Library 143592 2 Anna Centenary Library NA 3 Ariyalur 93296 4 Chennai 382214
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5 Coimbatore 511153 6 Cuddalore 209276 7 Dharmapuri 241961 8 Dindigul 305128 9 Erode 394198 10 Kancheepuram 269925 11 Kanniyakumari 244597 12 Karur 182185 13 Krishnagiri 171241 14 Madurai 260981 15 Nagapattinam 182559 16 Namakkal 291174 17 The Nilgiris 182783 18 Perambalur 73009 19 Pudukkottai 130388 20 Ramanathapuram 142247 21 Salem 1178700 22 Sivaganga 158563 23 Thanjavur 274389 24 Theni 166611 25 Tiruchirappalli 458568 26 Tirunelveli 334772 27 Tiruppur 302185 28 Tiruvallur 348869 29 Tiruvannamalai 332474 30 Tiruvarur 266065 31 Thoothukudi 209831 32 Vellore 347238
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33 Villupuram 242622 34 Virudhunagar 262353 Total District Total 9295147
104. The different categories of libraries, the break-up of which had been
given above, is shown hereunder district-wise, as per the details available in the
website of the Government of Tamil Nadu is as under :-
Number of Number of Number of District Number of Number of Full Time Number of Part Time Total (As Central Mobile Village Branch Branch Libraries on S. No. District Libraries Libraries (As Libraries Libraries (As Libraries (As (As on 31.03.201 (As on on (As on on on 31.03.2019) 31.03.201 9) 31.03.201 31.03.2019) 31.03.2019) 31.03.2019) 9) 9)
1 Ariyalur 1 4 17 NA 19 25 66 2 Chennai 1 17 122 NA NA 19 159 3 Coimbatore 1 26 64 1 100 54 246 4 Cuddalore 1 6 65 NA 47 23 142 5 Dharmapuri 1 6 31 1 69 31 139 6 Dindigul 1 14 48 NA 90 28 181 7 Erode 1 21 65 1 100 31 219 8 Kancheepuram 1 12 61 1 59 39 173 9 Kanniyakumari 1 1 20 NA 109 4 135 10 Karur 1 6 28 NA 57 10 102 11 Krishnagiri 1 4 29 NA 69 40 143 12 Madurai 1 10 57 1 65 29 163 13 Nagapattinam 1 7 41 NA 49 4 102 14 Namakkal 1 4 48 1 69 25 148 15 Perambalur 1 1 18 NA 29 36 85 16 Pudukkottai 1 11 29 NA 40 9 90 Ramanathapura 17 1 8 49 NA 25 5 88 m
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18 Salem 1 16 49 1 78 37 182 19 Sivaganga 1 6 52 NA 53 10 122 20 Thanjavur 1 11 47 1 48 5 113 21 The Nilgiris 1 5 48 NA 29 19 102 22 Theni 1 6 64 NA 51 38 160 23 Thoothukudi 1 10 43 NA 57 20 131 24 Tiruchirappalli 1 8 56 1 65 12 143 25 Tirunelveli 1 11 93 1 85 11 202 26 Tiruppur 1 19 38 1 77 17 153 27 Tiruvallur 1 15 58 1 51 21 147 28 Tiruvannamalai 1 7 42 NA 73 18 141 29 Tiruvarur 1 8 27 NA 50 11 97 30 Vellore 1 13 54 1 72 43 184 31 Villuppuram 1 8 61 1 74 64 209 32 Virudhunagar 1 13 88 NA 56 7 165 Connemara 33 1 NA NA NA NA NA 1 Public Library Anna Centenary 34 1 NA NA NA NA NA 1 Library Total District Total 34 314 1612 14 1915 745 4634
105. As has been well accepted that our country's backbone lies in the
villages and the upliftment of the villages would project India more prominently
in the global arena, the need for improving the intellectuality of the persons
through the length and breadth of the country is of foremost importance.
106. The roles that libraries play in supporting modern societies can be
grouped under five major categories below:
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(i) Higher education (ii) User education (iii) Recreation (iv) Library as a place and (v) Societal and cultural.
107. The societal roles that libraries have come to play include
democratization of information and knowledge, linking people to knowledge and
information sources, information and awareness services to communities for
empowerment. Library as a place has an attraction in itself as library is used to
run and organize academic, social and cultural activities. Libraries serve as
community centers with creative spaces suitable for a number of activities such
as organizing cultural activities to promote social harmony. Libraries collect,
preserve and conserve documents relating to socio-cultural aspects of the society
for future generations.
108. Libraries play a fundamental role in our society. They are the
collectors and stewards of our heritage; they are organizers of the knowledge in
the books they collect – adding value by cataloguing, classifying and describing
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them; and, as public institutions, they assure equality of access for all citizens.
They take the knowledge of the past, the present, and lay it down for the future.
109. In the above backdrop, the importance of the enactment of the Act
and Rules reveals itself in true colour as to the legislative purpose and intent
behind the said enactments and this Court embarks upon a voyage to find out
the niceties in the enactment of the said Act and the Rules and whether the
intent and purpose of the said enactments has been realised. Section 9 of the
Act envisages the Local Library Authority to perform the following functions :-
“9. Powers of Local Library Authorities. - A Local Library Authority may - (a) provide suitable lands and buildings for public libraries and also the furniture, fittings, materials and conveniences requisite therefor; (b) stock such libraries with books, periodicals, newspapers, maps, works and specimens of art and science, lantern slides, cinema reels and any other thing suitable for their purpose. (c) employ from time to time such staff as it considers necessary, 'or such libraries; (d) with the previous sanction of the Government, close or discontinue an public library or change the site thereof:
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[(e) accept, with the previous sanction of the Director or the Government, any gift of books, or with the previous sanction of the Government, any other gift or endowment for any purpose connected with is activities:] (f) provide for lectures and the holding of classes; and (g) in general, do everything necessary to carry out the provisions of this Act.” (Emphasis Supplied)
110. As is evident from sub-sections (b) and (f) to Section 9 of the Act, it is
incumbent on the part of the Local Library Authorities to stack the libraries with
the necessary materials in the form of books, periodicals, newspapers, maps,
works and specimens of art and science, lantern slides, cinema reels and any
other thing suitable for their purpose. The term “any other thing suitable for
their purpose”, in the present day scenario would connote the digital records and
other digital forms of materials that are generally accessed by the public at large.
However, in order to digitalise all the materials, which in turn conserves space,
financial requirement arises for which the Act provides the Local Library
Authorities for collecting appropriate payment. Section 11 of the Act provides
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the necessary safeguards relating to the safety and upkeep of the libraries, which
is as under :-
“11. Regulations by a Local Library Authorities. - (1) Subject to the provisions of this Act and the rules made thereunder, a Local Library Authority may make regulations generally to carry out the purpose of this Act and without prejudice to the generality of this power, such regulations may provide for - (a) the admission of the public to public libraries in its area on such conditions and on payment of such fees as it may specify; (b) requiring from persons desiring to use such libraries any guarantee or security against injury to, or misuse, destruction or loss of the property of such libraries; (c) the manner in which the property of such libraries may be used and the protection of such property from injury, misuse, destruction, or loss; and (d) authorizing its officers and servants to exclude or remove from any such library any person who contravenes or fails to comply with the provision of this Act or the rules or regulations made thereunder.”
111. Further, Section 12 and 13 of the Act clothes the Local Library
Authorities with the requisite power relating to levy of cess from the public
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residing in the locality for the upkeep and maintenance and also the running of
the library and the same is extracted hereunder :-
“12. Library Cess. - (1) (a) Every Local Library Authority shall levy in its area (a Tamil Nadu Act IV of 1919, Tamil Nadu Act V of 1920, Tamil Nadu Act X of 1920) Library cess in the form of a surcharge on the property tax or house tax levied in such area under the Tamil Nadu city Municipal Act, 1919, the Tamil Nadu District Municipalities Act, 1920 or the Tamil Nadu Local Boards Act, 1920, as the case may be, at the rate of three paise for every whole rupee in the property tax or house tax so levied. (b) A Local Library Authority may, with the previous sanction of the Government and shall if so directed by them increase the rate specified in clause (a). (2) The cess levied under sub-section (1) shall be collected- (a) in the City of Tamil Nadu by the Corporation of Tamil Nadu; (b) in an area within the jurisdiction of a municipal council, by the municipal council; (c) in an area in a district not included within the jurisdiction of municipal council or a panchayat, by the district board.
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(d) in an area in a district not included within the jurisdiction of municipal council or a panchayat, by the district board. if the cess were a property tax or house tax payable under the Tamil Nadu (Tamil Nadu Act IV of 1919, Tamil Nadu Act V of 1920, Tamil Nadu Act XIV of 1920) City Municipal Act, 1919, or the Tamil Nadu District Municipalities Act, 1920 or the Tamil Nadu Local Boards Act, 1920 as the case may be, and all the relevant provisions of the said Acts shall apply accordingly: Provided that the Government may, by notification, direct that for the purpose of the collection of the cess aforesaid, the provisions of the 1920. Tamil Nadu City Municipal Act, 1919 (Tamil Nadu Act IV of 1919), or the Tamil Nadu District Municipalities Act, 1920(Tamil Nadu Act V of 1920), or the Tamil Nadu Local Board Act, 1920(Tamil Nadu Act XIV of 1920), as the case may be, shall apply subject to such modifications as may be specified in the notification. (3) The cess collected under sub-section (2) shall be paid to the Local Library Authority concerned by the Corporation of Tamil Nadu, the municipal council, the panchayat or the district board, as the case may be. 13. Library Fund. - (1) Every Local Library Authority shall maintain a fund called the 'Library Fund' from which all its expenses under this Act shall be met.
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(2) There shall be credited to the Library Fund the following sums, namely:- (a) The cess collected under section 12, sub-section (2); (b) contributions, gifts, and income from endowments made for the benefit of public libraries; (c) special grants which the Government may make for any specific purpose connected with libraries; (d) fees, fines and other amounts collected by the Local Library Authority under any rules or regulations made under this Act.”
112. The safeguards relating to standards to be maintained and the
condition of the library are provided in Rule 19 and the same is quoted
hereunder :-
“19. The following are the conditions for retention of the name of a library in the register of aided libraries from year to year, namely:- (1) There shall be no deterioration in the standards and conditions approved at the time of entry in the register. (2) The Director or his agents shall be allowed to inspect the library, from time to time in order that the Director may satisfy himself that the standards and conditions of eligibility are being maintained. * * * * * * *”
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113. Further, Rule 20 prescribes the manner in which the aid given by the
Director may be used, which is as hereunder :-
“20. The aid to be given by the Director may be- (1) non-recurring to meet capital expenditure on buildings, furniture and fittings; or (2) recurring to meet current expenditure on all or any of the following, namely:- (a) the purchase of reading and kindred materials; (b) binding and preservation of reading and kindred materials; (c) the payment of the staff; (d) deputation allowance for staff deputed for professional training at institutions approved by the Director for the purpose; (e) other office expenses. (3) The aid may be both recurring and non- recurring.”
114. From the above provisions of the Act and Rules, it is evident that a
comprehensive mechanism has been created for the upkeep of the libraries,
monitoring the conditions and also stacking the libraries with the requisite
materials, so that the benefit is passed on to the future generations, who are the
building blocks of our democracy. Equally, the public has been tasked with the
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burden of contributing to the growth of the intellectual efficiency of their area in
the form of cess, that is to be borne by them on the property tax/house tax, as
the case may be, as per the fixed norms. Therefore, the public being a part and
parcel of the running of the library, it is incumbent on the persons manning the
library to see to it that the library is provided with the adequate infrastructure so
that the ultimate benefit is passed on to the public.
115. In this regard, reference requires to be made to sub-sections (b) and
(f) to Section 9 of the Act, already quoted above, which provides for the
materials to be made available in the library and also provision of lectures and
holding of classes. From the above, what could be culled out in essence is that
the Library, being a part and parcel of the Education Department, is required to
impart the necessary knowledge to the masses in the locality by arranging
lectures and holding classes. Though sub-sections (b) and (f) of Section 9
provides for the above, however, it is to be gainsaid that the said beneficial
provisions are only on paper and seldom the same happens in any of the
libraries. To put it bluntly, provision such as the one provided in sub-section (f)
of Section 9, to the mind of this Court, appears only to be on paper and nowhere
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in any of the libraries throughout the State such activities are performed for the
benefit of the residents of the locality.
116. Though the Act has provided for such an activity, however, there is no
clarity on the way such acts have to be performed and in the absence of any
Rules or Regulations for carrying out the performance as envisaged under sub-
section (f) to Section 9, the said provision in the Act is only an empty formality,
which has not been implemented in letter and spirit and the intent of the
Legislature has not been realised since its inception.
117. Further, as already pointed out above, sub-section (b) to Section 9
provides for stocking of cinema reels and any other thing suitable for their
purpose. In the digital age, the libraries are to be stocked with digital data by
providing computer-aided technology relating to learning so that the digital
media can be utilised by the public in the locality for improving their intellect.
However, it is not known as to the manner in which the particular provision,
above, is being adhered to. Though according to the data provided through the
website maintained by the Government of Tamil Nadu with regard to the
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number of libraries that have been opened across the State, it is to be pointed
out that even as per the statistics of the Government, the total libraries
established in the villages is 1915. However, according to the statistics taken in
Census-2011, there are 32 Districts, 215 sub-districts, 1097 towns and 15979
villages sprawled across the State of Tamil Nadu. Even taking the part-time
libraries that are said to be functioning, which figure is put at 745, the total
number of libraries in the villages, the part-time libraries and mobile units works
out to around 2600. From the above, it is manifestly clear that for the 15979
villages, only a paltry number of libraries, viz., around 1915 village libraries, 14
mobile libraries and 745 part-time libraries, are alone available, which works out
to roughly 15% of the strength of the villages.
118. Be that as it may. Tools for digitization and indexing of texts are the
need of the hour. Digitalizing the texts by use of technological tools would very
much contribute to reducing costs and increasing efficiency of the utilization of
the libraries, as the common man of today, is highly digitized.
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119. What users want from digital libraries are easy-to-find materials that
are the most precise and give complete answers to their queries, without having
to navigate through pages of results or information on screen. It would not be
out of context here to state that every citizen in this country carries a
smartphone and any information required by the individual can be googled in no
time. However, it is to be pointed out that though “Google can bring you back
100,000 answers, a librarian alone can bring you back the right one”. This
requires much more sophisticated and automatic indexing of the resources which
is the need of the future, as digital libraries providing audio, visual, Multimedia,
etc., would attract the public to use the system to greater benefit.
120. As observed by Russell T. Davies, “You want weapons? We’re in a
library. Books are the best weapon in the world. This room’s the greatest arsenal
we could have. Arm yourself!". At the risk of repetition, it is to be stressed that
education contributes to the wellbeing of the individuals as well as the overall
development of the society and library, being an instrument for enhancing
learning capabilities and improving the overall efficiency and intellect of the
public, the need of the hour is for the State to focus on augmenting the resources
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at its command to open more centres of learning, which alone would pave the
way for sustainable growth and development.
121. In the above backdrop, the matter being one of public concern and
interest, and this Court, being the guardian of the rights of the citizens of this
country, is of the considered view that a monitoring mechanism be formulated to
see to it that the vision of realising the requisite provisions formulated under the
Tamil Nadu Public Libraries Act, more especially sub-sections (b) and (f) of
Section 9 is adhered to in letter and spirit. One of the constitutional guarantees
is the providing of education to all the classes of people and in achieving this
target, libraries play a great role, as it helps in the advancement of socially and
educationally backward classes of citizens. Everything you need for better future
and success has already been written. And guess what? All you have to do is go
to the library. Such being the case, when the State is empowered to make
special provision in the laws for the advancement of socially and educationally
backward classes of citizens, most of the villages in State, being socially and
educationally backward, it is the ardent duty of the State to provide them with
the necessary infrastructure to improve their intellectual standard, which will
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have a direct impact on improving the living standard of the masses in the said
socially and educationally backward area.
122. Article 21A provides for right to education to all children. However, it
is to be pointed out that even as on date, library is provisioned only in 15% of the
village areas, which comprises of about 15979 villages. That being the case, the
education of the children and the improvement of the literacy among the masses
in the villages squarely stands sub-served by the State in not providing them with
the aid to improve their learning and hone their intellectual skills.
123. On considering the scope and purport of the legislation, viz., the
Tamil Nadu Public Libraries Act and the Rules, it is incumbent upon this Court to
call upon the State to provide the following details not only for this Court to
satisfy itself as to the manner in which the provisions of the Act and the Rules are
being followed, but also to find out ways and means of how the system could be
improved so that the libraries would be put to use in a proper manner by the
entire community, for whose benefit, the legislation has been carved out.
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Accordingly, the 1st and 2nd respondents are directed to provide the following
particulars to the Court by the next date of hearing :-
1) The staff strength and vacancy position across across the various libraries in the different cadres under the various Local Library Authorities as also the Directorate of Public Libraries. 2) The utilisation of funds collected in the form of Cess and other payments received towards membership as also the funds provided by the Government to the Local Library Authorities. 3) The provision of e-facility for library information system, digital access/digitization of the materials and the forms of digital records/materials maintained at the various Local Library Authorities and the funds allotted for provisioning the digital access. 4) The programmes that have been conducted in the form of lectures/classes and if so, the places where such lectures/classes were held in consonance with Section 9 (f) of the Act and also the steps taken for sharpening/honing the skills of the librarians and other staff members associated with the libraries for their better performance and in guiding the public.
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5) The blueprint, if any, drawn by respondents 1 and 2 for establishment of new libraries across the State, more especially in the villages, in consonance with the library movement initiated by the Government in the year 2009, while celebrating 2009-2010 as Library Rejuvenation Year” for improving the stature of the present libraries across the State and the infrastructure and other facilities provided to the Local Library Authorities in continuation thereof. 6) The steps taken by the respondents to promote the reading habits among the public, more especially, among the school going students and the efforts taken for establishment of libraries in the Government run institutions and also for taking the public library movement to the next level by bringing in active public participation.
124. The respondents 1 and 2 are directed to compile a comprehensive
report on the above points by furnishing relevant and up-to-date details and
submit the same before the next date of hearing. List the matter on 23.02.2021,
on which date the above comprehensive report shall be filed. It is further made
clear that the respondents are expected to provide the above details as sought
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for and shall not seek for any accommodation for filing the comprehensive report
to a later date.
15.02.2021 Index : Yes / No Internet : Yes / No GLN
To 1. The Secretary to Government School Education Department Government of Tamil Nadu Fort St. George, Chennai 600 009.
2. The Director of Public Libraries 737/1, Anna Salai Chennai 600 002.
3. The District Library Officer Theni, Theni District.
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M.DHANDAPANI, J.
GLN
PRE-DELIVERY ORDER IN W.P. (MD)Nos. 4111 of 2006, etc. Batch
Pronounced on 15.02.2021
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